Tuesday, June 2, 2009

Look for Sotomayor to Add Heat

Interesting: that headline is also the one in the newspaper article, though on the front webpage the headline reads: With Sotomayor, Left May Get Vocal.

And, heat? How about dynamism? Intellectual curiosity?

Judge Sonia Sotomayor's elevation to the Supreme Court probably wouldn't bring a big change to the court's ideological balance, but in at least one area, she would likely make an immediate difference: oral arguments.

A New Yorker is not likely to be reticent abput expressing her opinions.

If confirmed, Judge Sotomayor would arrive on a high court where conservatives have tended to dominate oral arguments in recent years. The arguments are the only chance the public has to see the justices in action.

It's high time someone cut into Scalia's performances.

A lawyer says the atmosphere has changed since John Roberts became chief justice, succeeding the late William Rehnquist, and Justice Samuel Alito replaced Sandra Day O'Connor.

"The questioning from the right has become far more aggressive," says Mr. Goldstein. "The justices on the left tend to be more reticent and ask less pointed questions."

Temperament? That's a red herring, a strawman, a diversionary tactic, nonsense. Men are aggressive, women are pushy. Or brusque.

Reticence isn't Judge Sotomayor's style. "She's from the Bronx," says Vincent Briccetti, a White Plains, N.Y., defense lawyer who has argued before Judge Sotomayor. "Of course she's brusque."

Mr. Goldstein suggests that Judge Sotomayor could become a foil for Chief Justice Roberts. Both are 54 years old and share an Ivy League education. They diverge in their upbringing -- Chief Justice Roberts was the son of a steel executive, while Judge Sotomayor came from humble surroundings in New York's Bronx borough -- and in their approach to the law, with the chief justice strongly skeptical about affirmative action.

Of course he's skeptical: he never needed it. He earned his stripes, though never mind daddy's money.

Jon Schoenhorn, a Hartford, Conn., lawyer, encountered Judge Sotomayor most recently when he represented a high-school student who was barred from running for school office after calling certain administrators a derogatory name.

"She asked most of the questions," says Mr. Schoenhorn, and grilled both sides in a way that showed she "had mastered the facts." Mr. Schoenhorn thought from her tone in questioning that his client would win, but earlier this year, Judge Sotomayor joined in an opinion rejecting his appeal.

Mastered facts.

In the court's private conferences, Judge Sotomayor could first make an impact on the size of the court's docket, says Carter Phillips, managing partner of Sidley Austin LLP in Washington and a law clerk to late Chief Justice Warren Burger. Four votes are needed to accept a case for argument.

In previous decades, the court would decide more than 100 cases a year. In recent years, the number has fallen to about 70, frustrating attorneys who would like to see the court take up their cases.

Light workload. And Roberts doesn't seem to have made any charge therein.

"There's nothing on the record that suggests Justice [David] Souter was a large proponent of a larger docket," Mr. Phillips says. Replacing him means "another shot, from our perspective, someone who's coming to the issues fresh and might bring more curiosity to the issue" itself, rather than stepping in mainly to resolve conflicts between the lower courts.

Intellectual curiosity, not just umpiring.

"This remains a court dominated by Justice Kennedy," says Edward Lazarus*, a former Supreme Court clerk and author of a book about the court. Mr. Goldstein, who also runs the Scotusblog.com Web site, says the liberal wing could lose out with the retirement of Justice Souter.

"Persuasion on the court is based on relationships and trust. Kennedy is somebody who trusts Souter. They worked together for two decades," Mr. Goldstein says.

To reach Justice Kennedy, Judge Sotomayor would "have to be careful," says Mr. Phillips. "You don't want to push him too hard, but you want to push him hard enough. You have to hit the notes just right."

The Kennedy Court.

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